Should we expand the Supreme Court? Here’s the historical argument for, and then I’ll give the arguments against.
The historical argument for expanding the court
We’ve changed the number of justices already seven times in the first 80 years under the Constitution: we went from six to five to six to seven to nine to ten to seven, then back up to nine. And that’s where we’ve been since 1869.
We’ve changed them on average, the first 80 years, about once a decade. Most of those times, we did it to match the number of justices to the numbers of circuit courts. Each justice used to be assigned a circuit. They would spend months traveling from courtroom to courtroom in that circuit, on horseback, in bad weather, staying at shitty hotels.
And they hated it. Which kind of makes me think we should bring it back. But we did it because we were strapped for judges and needed help, and it also brought the justices closer to the people. But in 1891, it got to be too much, so Congress created the current circuit court system we know today. And that ended the need for justices to help out and have a circuit to ride.
But today, each justice still has a circuit from which they get emergency appeals, like to delay an execution. So because the numbers don’t match—nine justices, thirteen circuits—that means four justices hear appeals from two circuits. We could add four justices and make it thirteen circuits, thirteen justices—each one gets a circuit.
Also, we have ten times the population today that we did in 1869, but the same number of justices. And adding more justices means more ideological diversity.
Arguments against court expansion
Opponents of expansion say it could trigger an arms race. The next party in power could just retaliate and add more justices back and forth. It could spiral out of control.
Also, circuit riding is dead, so it doesn’t need to match the number of circuits. And adding justices is really just a power grab.
But let’s be honest, the court is already partisan. Americans are not dumb. We know it. And that’s why the Supreme Court has its second lowest approval rating today that it’s had in the past 40 years.
All it takes to add or remove justices is for Congress to pass a law. Nothing more, nothing less.
So comment with your thoughts on this and follow me, Ben Sheehan, and The Contrarian, because I am all about making the confusing stuff easy to understand, especially as the midterms approach.
Ben Sheehan is a political commentator and digital creator. He specializes in civics education, which is showcased in his latest book, What Does the Constitution Actually Say?: A Non-Boring Guide to How Our Democracy Is Supposed to Work. Check out his Substack, Politics Made Easy.
